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Miller v. Coty, Inc.

United States District Court, W.D. Kentucky, Louisville

March 21, 2018




         This matter is before the court on motion of the Defendants, Coty, Inc. and Coty, US, LLC (collectively, “Coty”), for summary judgment. The Defendants also move for exclusion of expert testimony. For the reasons stated herein, the court will GRANT IN PART and DENY IN PART the Defendants' motion to exclude expert testimony. The court likewise will GRANT IN PART and DENY IN PART the Defendants' motion for summary judgment.

         I. BACKGROUND

         This case arises from an injury sustained while using an at-home hair-removal waxing kit. In May of 2013, Timothy Miller (“Timothy”) purchased a “Sally Hansen Extra Strength All-Over Body Wax Kit” (“Product”), a product acquired by Coty in 2008, from a retail store for $9.98. (DN 53, Exh. 1.) Timothy alleges that he purchased the Product for his wife, Plaintiff May Miller (“May”), to be used on her “pubic area”[1] after discussing the topic of waxing. (Id. at 7.) Neither Plaintiff researched waxing kits prior to purchasing the Product. (Id. at 8.) May claims that she had previously purchased waxing kits for her eyebrows and legs but could not recall the specific brand or product that she used. (Id. at Exh. 2, 19.)

         The Plaintiffs decided to use the waxing kit at home later that month. (Id. at Exh. 2, 23.) Both Millers testified to reading the instruction sheet included inside the Product box. (Id. at Exh. 1, Exh. 2, 24.) May claims to have read the instructions once, while Timothy alleges that he read the entire instruction sheet twice, once earlier in the evening and once immediately prior to using the Product. (Id. at Exh. 1, 10.) Timothy also claims that he watched two online videos demonstrating the general use of home-waxing kits. (Id. at 1.) The videos were not produced or approved by Coty and Timothy could not recall the brand or type of wax used in these videos. (Id.) However, Timothy claims that both videos demonstrated how to wax the “pubic area” of a woman, generally. (Id.)

         Timothy prepared the wax by melting it on high in the microwave per the instructions and prepared the waxing strips by cutting them into smaller pieces. (Id. at 14 - 15.) May lay flat on her back while Timothy applied the wax. (Id. at 15.) He maintains that he began applying the wax on the outer edge of May's hair line in the “pubic area” on the right side of her body. (Id.) He alleges that he applied the wax with a spatula in one to two inch strips in the direction of the hair growth. (Id. at 16.) Then he pressed a strip onto the applied wax, rubbing the strip with pressure a couple of times with his finger. (Id.) He claims that he held the skin taut while quickly pulling in the opposite direction of the hair growth, keeping his hand close to her body as the instructions indicated. (Id.)

         According to the Millers, Timothy managed to successfully wax several portions of hair off May's body in the “pubic area.” (Id. at 17.) The injury occurred while Timothy was waxing a section of hair on May's left labia majora. Timothy explained that he applied the wax to May's left labia majora, held the skin taut, and pulled the strip. (Id. at 16 - 18.) As he pulled the strip, the skin on May's labia majora tore. (Id. at 18.) May testified that the strip of skin that tore was adjacent to the area that was actually waxed, rather than the skin directly under the waxing strip. (DN 53, Exh. 2, 28 -29.)

         “Almost immediately” after the tear occurred, the Millers went to the Emergency Room to have May's injury treated. (Id. at 40.) While there, May received sutures, antibiotics, and pain medication. (Id. at 41.) Immediately following the injury, May experienced bruising and swelling around the injury site. (Id.) May claims that she experiences numbness and lasting pain, including a “burning sensation” in the area surrounding the injury. (Id. at 47.) May further states that she has an approximately three and a half inch scar on her labia majora with several areas of puckering and an extra fold of skin. (Id. at 52.)

         There is no dispute that the Millers read the Product packaging and instructions, including the Product warnings. There is also no dispute as to the specific language used in the instructions and warning. The front of the box states the following: “Extra Strength All-Over Body Wax Kit;” “Brazilian Formula Removes Hard to Remove Hair;” “Smart Wax Grabs Hair, Not Skin.” (DN 53, Exh. 4.) The back of the box additionally states: “Eliminates Even the Most Stubborn, Unwanted Hair” and “Great for Body, Legs, Arms, Bikini and More.” (Id.) The side of the box includes this language: “IMPORTANT: Read and follow enclosed directions and cautions carefully before proceeding.” (Id.)

         An instruction sheet was contained inside the packaging. The instruction sheet states that the product is “Perfect For: Body, Arms, Bikini Area, Legs, Underarms, and More!” (DN 53, Exh. 3.) It also warns: “PLEASE READ THIS INTRUCTION BOOKLET CAREFULLY BEFORE PROCEEDING WITH TREATMENT. FAILURE TO FOLLOW WARNINGS AND INSTRUCTIONS MAY RESULT IN SEVERE SKIN IRRITATION, SKIN REMOVAL OR OTHER INJURY.” (Id.)

         The instruction sheet contains a section entitled “CAUTION.” (Id.) One of the bullet points in this section states the following: “DO NOT use on irritated, chapped, sunburned or cut skin, over moles or warts, or after a hot bath. NEVER use on nipples, perianal, vaginal/genital areas, or on hairs inside nostrils, ears or on eyelids/eyelashes.” (Id.)

         Lastly, the instruction sheet contains “TIPS” for certain areas of the body. (Id.) For the “BIKINI LINE” area, the tips suggest to “Always hold skin taut. Work in small areas from the outer bikini line to the inner bikini line.” (Id.) Next to the tips, there is a small, simple line drawing of a female torso and thighs with the pubic area covered by a bikini. (Id.) The words “Apply” and “Remove” are accompanied by arrows and the hand of the figure appears to be waxing a portion of the upper thigh. (Id.) No. additional warnings are given in this section.

         According to the Millers, they believe that they followed all of the directions in applying the wax. May testified that she believes the “bikini area, ” as stated on the Product packaging and in the instructions, to be anywhere hair could potentially show while wearing a bikini, including portions of the labia majora. (DN 53, Exh. 2, 35 - 36.) May stated that, depending on the bikini's style, and taking in consideration the shifting of fabric, outer portions of the labia majora could be exposed in a bikini. (Id.) When May read the section of the instructions warning consumers never to use the Product on “vaginal/genital areas, ” she did not believe that this included the portions of the labia majora that could potentially be exposed in a bikini. (Id.)

         Based upon these facts, the Millers bring claims against Coty under Kentucky's laws of products liability, breach of warranty, and consumer protection. Additionally, the Millers seek loss of consortium and punitive damages. Coty now moves for summary judgment on each count of the Amended Complaint.

         II. STANDARD

         A party moving for summary judgment must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Additionally, the Court must draw all factual inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine issue for trial exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986).


         Plaintiffs' Amended Complaint contains the following counts: Strict Liability; Negligence; Failure to Warn; Breach of Implied Warranty of Merchantability; Breach of Express Warranty; Breach of Implied Warranty of Fitness for a Particular Purpose; violation of Kentucky's Consumer Protection Act; Loss of Consortium; and Punitive Damages. The Defendants move for summary judgment on each of the counts. The court will first address the Defendants' Motion to Exclude Plaintiffs' Expert Testimony (DN 54), as the use and scope of the testimony is essential to the resolution of the case.[2]

         A. Expert Testimony

         The Plaintiffs offer the testimony of three experts in support of their claims. Carol Pollack-Nelson, Ph.D. (“Dr. Pollack-Nelson”), is offered as a human factors expert, William F. Kitzes, J.D. (“Mr. Kitzes”), is offered as a products safety management expert, and Eva Desiree Carden (“Ms. Carden”) is offered as an expert on waxing procedures. Coty seeks to exclude each of the three experts' testimony in their entirety. In the alternative, Coty asks that “the testimony of Dr. Pollack-Nelson and William Kitzes be limited to the subject of the Defendants' product warning label.” (DN 54, 12.)

         Federal Rule of Evidence 702 outlines the admissibility of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or otherwise specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         Courts also may consider the following non-exhaustive factors to assess reliability of expert testimony: (1) whether the theory can be or has been tested; (2) whether the technique or theory has been subjected to peer review and publication; (3) the known or potential rate of error and the existence and maintenance of standards controlling the theory or technique's operation; and (4) the extent to which a known technique or theory has gained general acceptance within a relevant scientific community. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594 (1993). The purpose of the rule is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

         Lastly, the court notes the role of cross-examination in challenging the persuasive weight to be given to admissible expert testimony. If the court finds the proffered expert testimony to be relevant and reliable, it is “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof” that is “the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

         For the following reasons, Coty's motion for exclusion of expert testimony will be granted only to the extent it seeks to preclude Dr. Pollack-Nelson and Mr. Kitzes from testifying about the underlying Product design. The motion to exclude the testimony of Ms. Carden will be denied.

         1. Carol Pollack-Nelson, Ph.D.

         Carol Pollack-Nelson, Ph.D., is offered as a human factors expert. Generally, human factors experts tend to have specialized knowledge in “human perception and awareness, ” and are concerned with “the interrelationship of a human's inherent capabilities and limitations with product designs and the surrounding environment.” Using the Human Factors Expert in Civil Litigation, 40 Am. Jur. Trials 629 § 1. Human factors experts are also used to provide opinions on the effectiveness or adequacy of warnings. Id. at § 7.

         Dr. Pollack-Nelson is expected to testify about the human perception of, and interaction with, the Product packaging and instructions. The Defendants seek to exclude her opinion that “Warnings, instructions and other marketing information on and associated with the Sally Hansen Extra Strength All-Over Body Wax Kit are both misleading and fail to adequately advise consumers of the hazards associated with the product and how to avoid such hazards.” (DN 53, Exh. 7, 1.)

         Dr. Pollack-Nelson holds a doctorate degree in Industrial/Organizational Psychology and has worked in the field of consumer product safety since 1982. (DN 53, Ex. 7, 1.) Between 1988 and 1993, Dr. Pollack-Nelson was employed by the U.S. Consumer Product Safety Commission in the Human Factors Division as a Senior Engineering Psychologist. (Id.) She claims that “evaluating warnings and labels and marketing” is central to her everyday practice. (DN 53, Exh. 6, 20.) Dr. Pollack-Nelson alleges that she has evaluated the labels and warnings of various consumer products including, among others, cosmetics, over the counter medicine, and hair products. (Id. at 11.) However, Dr. Pollack-Nelson has no professional experience in evaluating the warnings, labels, or marketing of waxing products. There is no dispute that she did not rely on specific scientific research or studies concerning the design of at-home waxing kits, waxing formulas, or waxing-related risks. Likewise, she did not perform any tests, studies, or consumer surveys on the Product in question. (Id. at 31.)

         In reaching her conclusions, Dr. Pollack-Nelson reviewed different versions of packaging for Sally Hansen Extra Strength All-Over Body Wax. (DN 53, Exh. 7, 2.) She purchased a Sally Hansen Extra Strength All-Over Body Wax Kit from a drugstore and reviewed the Product packaging, warnings, and instructions. (Id.) She reviewed the deposition testimony of the Plaintiffs and the Defendants' representatives as well as incident data involving the Product. (Id.) She claims that she relied on her “knowledge of human behavior as it relates to consumer product warnings, instructions, and design” with the experience she gained “over the past 25 years as a human factors psychologist and researcher.” (Id. at 1.)

         Initially, the court agrees that Dr. Pollack-Nelson is precluded from testifying on any matters regarding the underlying “design, manufacture, or inherent safety qualities of the product.” There is no dispute that Dr. Pollack-Nelson has no professional experience related to waxing products or any product similar enough to make her an expert on the underlying Product. The Plaintiffs do not provide any evidence that Dr. Pollack-Nelson is qualified to testify as an expert as to the Product's underlying design, and consequently any such opinion requiring specialized knowledge of waxing will be excluded. Therefore, Dr. Pollack Nelson is precluded from giving an opinion on her personal understanding of waxing-specific terms, the differences between hard waxes and soft waxes, the formula of the Product, the types of injuries that can be caused by waxing, and the “intended” use of the Product. These opinions are excludable because they either rely on personal opinions or informal internet searches, neither of which are reliable sources of opinions under Rule 702 or Daubert.[3]

         The more critical issue is whether Dr. Pollack-Nelson may offer testimony related to the labeling, marketing, and instructions of the Product. Specifically, the court, in its role as “gatekeeper, ” must determine whether her proffered testimony on the Product's marketing, labeling, and instructions is relevant and reliable under Rule 702 and Daubert.

         The Defendants argue that Dr. Pollack-Nelson cannot testify that “the marketing information and instructions for the product is [sic] misleading” because she does not have the expertise to testify as to “whether this particular Product, or any waxing product, is designed to remove coarser hair, such as in the bikini area.” They further argue that “Her opinions are based upon the assumption that Ms. Miller's injury was caused by the Product, a soft wax marketed to be used in the bikini area.” (DN 64, 5.)

         The court is not convinced by the Defendants' argument that expertise on the underlying Product is necessary to give any reliable opinions on the Product's instructions and warnings. While Dr. Pollack-Nelson may not testify as to what the product was designed to do - such as whether the formula was designed to remove coarse hair - she may testify as to how consumers might interact with and understand the Product based on the packaging, instructions, and warnings. Additionally, Dr. Pollack-Nelson need not testify that the use of soft wax, rather than hard wax, caused May's injury in order to give an opinion on consumer expectations about where the Product can be used and the adequacy of warnings in terms of specificity and ambiguity. Therefore, while Dr. Pollack-Nelson may not opine that the Product is misleading based upon her personal understanding of the Product's intended use, she may testify as to how consumers, presumably also inexpert in waxing design, may interact with and understand the Product. Such opinions are based not upon the underlying Product design, but based upon applying her twenty-five years of experience in the established field of human factors.

         After review of Dr. Pollack-Nelson's expert report, the court finds her human factors opinions on the Product's packaging, instructions, and warnings sufficiently reliable as to be admissible under Rule 702 because she applied her extensive experience in an established field of psychology. Further, her testimony is relevant because it may help the jury determine the factual issues of foreseeable use of the Product and the adequacy of the Product's warnings. For these reasons, Dr. Pollack-Nelson's testimony will be excluded to the extent she seeks to give opinions that require an understanding of the underlying Product design, but will be admitted to the extent she testifies to the Product's packaging, instructions, and warnings in terms of consumer expectation and understanding.

         2. William ...

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